https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10369

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 147 OF 1994** **IN THE MATTER OF THE ESTATE OF THE ROSE ATIENO OPANDE** **(DECEASED)** **DANIEL ISHMAEL OPANDE………………………………………. ADMINSTRATOR** **Coram: Before Justice R. Nyakundi** **M/S Kitiwa & Partners Advocates** **RULING** 1. Before this Court is an Application under Section 74 of the Law of Succession Act and Rules 43 and 73 of the Probate and Administration Rules and The inherent powers of the Court day. 2. *The Certificate of Confirmation of Grant issued herein to the Applicant on 11th May 2000 be amended to include the deceased's assets namely;* 3. *Land parcel number Nairobi/Block 32/464.* 4. *The properties be distributed as per the consent on distribution attached to the application.* 5. *Costs be in the cause.* 6. The application is based on the grounds that;- 7. *The Administrator of the estate only came to learn of the deceased's property recently.* 8. *At the time of applying for the letters of administration the properties of the deceased were not included in the list of assets.* 9. In support of the application is the annexed affidavit of Daniel Ishmael Opande who deponed as follows: 10. *That I am the Administrator of the estate of the deceased and the Applicant herein.* 11. *That a confirmed certificate of grant for the estate of the deceased was issued by the Honourable Court to me on 11th of May 2000.* 12. *That at the time I applied for letters of administration of the estate of the deceased two properties of the deceased were inadvertently not included in the list of assets.* 13. *That the two properties are therefore not indicated in the confirmed certificate of grant.* 14. *That I therefore pray that this Honourable Court do amend the confirmed certificate of grant for estate of the deceased by including the two properties.* 15. *That I also pray that the properties be distributed as per the consent on distribution.* 16. *That failure to include the properties in the deceased's list of assets was not intentional but due to factors beyond my control.* **Decision** 1. The application core reliefs touch on review of which will culminate in the amendment of the Certificate of Confirmation of Grant dated 11th May 2000. It is apparent from the Administrator’s averment that during the confirmation of the grant, two properties of the deceased were inadvertently not included in the list of assets. This remedy being sought by the Administrator cannot be availed in terms of the provisions of Section 74 of the Law of Succession Act as read with Rule 43 and 73 of the Probate and Administration Rules which is mainly purposed for correcting minor errors and mistake in an instrument. 2. The proper legislative scheme is to invoke Section 80 of the CPA as read with Order 45 Rule 1 of the Civil Procedure Rules. The principles underlying review jurisdiction are now well known as they guide the Courts within the following scope; That: * *New evidence has been discovered and it was not within the knowledge of the applicant even after exercising due diligence or the applicant could not produce the evidence before the Court at the time the judgment was passed.* * *There is a manifest error on the face of the record which resulted in a miscarriage of justice. The applicant would therefore be required to prove very clearly that there is a manifest error apparent on the face of the record. He will have to prove further, that such an error resulted in injustice.* * *The decision was obtained by mistake or fraud.* 1. The Court in this respect can only entertain an application for review where the party making the application proves the allegations relied upon to the satisfaction of the Court. In **Nyamogo & Nyamogo Advocates vs. Kago [2001] 1 EA 173** the Court of Appeal made the point that: *“... There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."* 1. The guiding principles on review can be summarized as follows: * ***Discovery of new evidence:*** *a review is maintainable if “new and important matter or evidence” is discovered which was not available despite the exercise of due diligence.* * ***Other sufficient reason:*** *this must be analogous to the first two grounds (new evidence or error apparent), not a general ground for rehearing.* * ***Error apparent on the face of the record:*** *the error must be self-evident and not require a long-drawn process of reasoning.* 1. Review proceedings are not obviously a form of an appeal. The following passage is also instructive: *“21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.” See the Court in State of West Bengal v Kamal Sengupta (2008) 8 SCCC 612.* 1. These proceedings of this application date back to 11th May 2000, when the certificate of confirmation of grant was issued without any schedule of description on the property of any shares of the beneficiaries shared by the Court as per the provision of the law. It is also evident from the affidavits that in the matter of the estate of Rose Atieno Opande, Daniel Ishmael Opande was appointed as the Administrator to the estate but apparently there is no mention of any other beneficiary, he happens to be the Widower to the deceased, however in the matter of the estate of the late Opande a consent signed by all the beneficiaries indicative of the deceased estate contained the following details: 2. *Land parcel number Nairobi/Block 32/464* 3. *Plot No. 5 of Area II Nairobi* 4. *All to Daniel Ishmael Opande* 5. *Signed by the beneficiaries of the estate:* * *Daniel Ishmael Opande* * *Michael Ouko Opande* * *Caroline Omollo Opande* * *Bryan Tekola Opande* * *Robert Opande* * *Catherine Adhiambo Opande* 1. Upon a review of the application, the discovery of a new and important evidence is a ground available to the Applicant for this Court to exercise its discretion to review and amend the grant and have it to include the net intestate estate of the deceased and the beneficiaries as herein alluded to in the consent dated 8th day of December 2025. Perusing the facts and the legal trajectory of this succession cause the impugned certificate of confirmation of grant conforms to the scope of review for an order to issue under Section 80 and Order 45 Rule 1 of the Civil Procedure Rules. As a consequence, therefore the grant of letters of administration dated 11th May 2000 shall be reviewed and the distribution of the estate be within the limits specified in the consent and no order as to costs. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 10TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**